Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 05NF4683 Gary S. Paer, Judge.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
Joseph Leno Sabala was convicted of committing numerous sex crimes against his daughters L. and N. He contends: 1) The court erred in admitting evidence of uncharged sex crimes; 2) there is insufficient evidence to support one of his convictions; and 3) the prosecution of the crimes involving L. was time barred. We reject these contentions and affirm the judgment.
FACTS
L. was born in February 1984 in Guam. When she was two years old, her mother married Sabala. Although he is not L.’s natural father, she did not become aware of this until she reached adulthood, after he had victimized her for many years.
The abuse began when L. was three or four years old. At first Sabala limited it to touching her breasts, then he began putting his fingers inside her vagina and having her orally copulate him. With the exception of the digital penetration, which occurred less frequently, the abuse occurred about every two or three months until L. was 11 years old.
At that time, the family moved to Anaheim and the abuse intensified. Hardly a day went by when Sabala did not touch L.’s breasts and/or digitally penetrate her. Although she didn’t like it, she always told Sabala otherwise for fear he would beat her, which he was prone to do whenever she tried to avoid him.
When L. turned 12, Sabala attempted to have intercourse with her on five or six occasions. Each time he stopped when she told him it hurt too much. However, one day he didn’t relent. After calling her into the bathroom, he closed the door, grabbed and licked her breasts and took off her shorts. Then he took off his shorts, sat on the toilet and told her to lower herself onto him. When she protested it hurt too much, he told her “it will be okay” and pushed down on her shoulder and hip until he penetrated her. Then he had her rock back and forth until he ejaculated inside her.
When L. was 13 or 14 years old, Sabala had intercourse with her at least once a month, and had her orally copulate him about twice a week. After Sabala became unemployed due to a back injury, the rate of intercourse increased to about two or three times a day. He continued to beat her when she tried to avoid him.
When L. turned 15 years old, Sabala began engaging in mutual oral copulation with her. They had intercourse three or four times a week, and one time L.’s 12-year-old sister R. walked in on them during the act. On another occasion, L.’s siblings N. and J., then age eight and nine respectively, climbed into the residence through a window because the doors were locked. They saw Sabala having sex with a woman they thought was their mother. However, they soon realized it was L. Neither Sabala nor L. noticed them.
When L. was 16 or 17 years old, Sabala became irate after finding a picture of her with a male classmate. He bludgeoned her about the arms and head with a cane. Then, to cover up his actions, he told L. to tell her mother she had fallen down the stairs. Another time, he beat L. because he believed she was seeing a male coworker. Social Services was notified, but L. did not tell them about the molestation. Nonetheless, she spent the next two and a half years in Orangewood, a foster home, or transitional housing.
In 2002, when L. was 18 years old, she lifted a restraining order she had obtained against Sabala. She did so because she wanted to see her siblings. During her visits, Sabala often tried to touch her inappropriately. On these occasions, L. either pushed him away or walked away herself.
Sabala then began directing his abuse toward N. On at least 20 occasions during 2002-2003 he tickled her as a ruse to grab her breasts over her clothes. One time in 2003 or 2004, Sabala asked her to give him a hug and a kiss. When she did, he put his tongue in her mouth and moved it around. Disgusted, she pushed him away, but Sabala just laughed. He told her not to tell others about his conduct because “people are going to think something bad.”
In February 2005, L. told Sabala she planned to marry. Instead of congratulating her, he threatened to kill her fiancé and told her she would never see her siblings again. The next month, L. and N. told each other what Sabala had done to them. A short time later, L. told the authorities. With an investigator’s assistance, she secretly recorded a phone call with Sabala in which he acknowledged she had orally copulated him when she was younger. Sabala also agreed when L. said he was a compassionate lover. And, when she asked if he wanted to resume their sexual relationship, he thanked her for “opening that door again.”
The jury convicted Sabala of nine counts of sexual abuse against L., including continuous sexual abuse, aggravated sexual assault and lewd conduct. With respect to N., the jury convicted him of two counts of lewd conduct on a child under the age of 14. It also found true allegations Sabala engaged in substantial sexual conduct and committed a lewd act against more than one victim. The court sentenced him to 42 years to life in prison.
I
Sabala argues the court erred in admitting evidence of uncharged sex crimes he committed against L. He contends the admission of this evidence constituted an abuse of discretion and violated his due process and equal protection rights. We disagree.
Before trial, the prosecutor informed the court she intended to elicit testimony from L. that Sabala sexually abused her from the time she was four until the time she turned eleven, when the family moved to Anaheim. Although the prosecutor acknowledged Sabala’s conduct during this period was not part of the charges, she argued it was important to help the jury understand the nature of his relationship with L. Sabala objected on the grounds the evidence was irrelevant, time consuming and unduly prejudicial. The court overruled his objections and allowed the jury to consider the evidence to determine whether he was inclined to commit the charged offenses.
Evidence of the accused’s prior bad acts is generally inadmissible (Evid. Code, § 1101, subd. (a)), unless it helps prove a fact other than his disposition to commit the charged offense. (Id., subd. (b).) However, evidence of prior sex crimes is treated differently; such evidence is admissible to prove the defendant’s propensity for sexual misconduct in a sex crimes prosecution, so long as it is not unduly prejudicial. (Evid. Code, §§ 1108, 352.) Evidence Code section 1108 “was intended in sex offense cases to relax the evidentiary restraints [Evidence Code] section 1101, subdivision (a), imposed, to assure that the trier of fact would be made aware of the defendant’s other sex offenses in evaluating the victim’s and the defendant’s credibility.” (People v. Falsetta (1999) 21 Cal.4th 903, 911.) Indeed, “‘[t]he Legislature has determined the need for this evidence is “critical” given the serious and secretive nature of sex crimes and the often resulting credibility contest at trial. [Citation.]’ [Citations.]” (Ibid.)
Introduction of the defendant’s prior sex crimes is not without limitation, however. As noted, such evidence is subject to Evidence Code section 352, which empowers the trial court to exclude evidence if its probative value is substantially outweighed by the probability its admission would cause undue delay, confusion or prejudice. Given this limitation on the admission of prior sex crimes evidence, courts have upheld Evidence Code section 1108 against attacks that it violates due process and equal protection. (People v. Falsetta, supra, 21 Cal.4th at pp. 910-922; People v. Fitch (1997) 55 Cal.App.4th 172; People v. Waples (2000) 79 Cal.App.4th 1389.) The statute has been adjudged a constitutionally sound method to allow propensity evidence in sex crimes cases. (Ibid.) We therefore turn to Sabala’s claim that the evidence of his prior uncharged sex crimes was unduly prejudicial under Evidence Code section 352.
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) Trial courts have broad discretion in this area; we may not disturb the court’s ruling under Evidence Code section 352 unless it is arbitrary or capricious. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; People v. Branch (2001) 91 Cal.App.4th 274, 282.)
Here, the court’s decision to allow evidence of Sabala’s prior sex crimes against L. was a wholly reasonable exercise of discretion. In terms of sheer volume, the evidence was not unduly time consuming. It took up less than 10 percent of L.’s testimony, and it was not discussed by any other witnesses. And although some of the uncharged sex crimes occurred several years before the charged offenses, there were significant similarities between them. The uncharged crimes included digital penetration and oral copulation, and the charged crimes included oral copulation and intercourse. Because the crimes were all in the same vein, the probative value of the uncharged offenses increased and effectively “balanced out” their remoteness. (People v. Branch, supra, 91 Cal.App.4th at p. 285; People v. Waples, supra, 79 Cal.App.4th at p. 1395.)
Granted, the uncharged offenses were different in the sense that L. was quite young (ages four through eleven) at the time they occurred. However, the uncharged offenses did not occur as often as the charged offenses, nor did they include sexual intercourse. Considering the type and frequency of the charged offenses, we do not believe the uncharged offenses were particularly inflammatory.
Sabala cites the frequency of the charged offenses as proof the uncharged offenses were cumulative and unnecessary. But he overlooks the uncharged offenses’ extreme importance in terms of putting Sabala’s conduct in context and helping the jury understand why L. was reluctant to report him. Without evidence of the uncharged crimes, the jury would be left with the false impression Sabala and L. had a normal relationship until she was 11 or 12 years old. And if the jury were led to believe the molestation did not begin until then, it might have been less inclined to believe L.’s allegations.
As the Attorney General cogently argues, “[T]he jury could reasonably conclude that an 11 year old [who has never been molested] would know [Sabala’s] conduct was wrong; . . . would have the courage to stop it or report it; and . . . have a motive to lie and be sophisticated enough to carry it through. In contrast, the ‘other crimes’ evidence gave the jury a fair and accurate picture of [L.]’s life as a child molest victim from a very young age. Being molested was the only life [L.] ever knew, and she explained that it was years before she even knew what was happening was wrong.” This explains why the uncharged offenses were not simply cumulative, but highly relevant in terms of explaining the dynamics of the situation L. faced.
Lastly, Sabala argues that because there was no evidence he was ever convicted of the uncharged crimes, “the jury was left with the unspoken task of vindicating unaddressed wrongs by giving unwarranted weight to this evidence.” That strikes us as an overstatement. When, as here, there is evidence the defendant committed prior crimes for which he was never convicted, it does make the jury’s task more complicated. The jury must first decide whether the prior offenses actually occurred, and if they believe they did, it must then resist the desire to “punish” the defendant for those offenses by convicting him of the charged crimes. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.)
In this case, though, it was alleged that both the uncharged offenses and the charged offenses were perpetrated against the same victim. If the jurors did not believe L. was a credible witness with respect to the charged crimes, it is exceedingly unlikely they would have found her credible with respect to the uncharged crimes. No desire for vindication would arise in this situation. On the other hand, if the jurors believed L.’s testimony in its entirety, there would have been nothing wrong with them considering the uncharged crimes in determining whether Sabala was guilty of the charged offenses. After all, that is precisely what Evidence Code section 1108 contemplates.
For all these reasons, we uphold the evidence of Sabala’s uncharged sex crimes. The court’s decision to admit this evidence was not arbitrary or capricious, and therefore it did not constitute an abuse of discretion under Evidence Code section 352. Nor did the court’s decision violate Sabala’s right to due process or equal protection. No error has been shown.
II
L. testified that after several failed attempts, Sabala had sexual intercourse with her in the bathroom when she was 12 years old. Based on this incident, the jury convicted Sabala of aggravated sexual assault on a child. (Pen. Code, § 269, subd. (a)(1).) He argues there is insufficient evidence to support the conviction, but we are not persuaded.
The test for the sufficiency of evidence on appeal is “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citations.] In making this assessment [we] look[] to the whole record, not just the evidence favorable to the respondent to determine if the evidence supporting the verdict is substantial in light of other facts. [Citations.] [¶] . . . [¶] . . . ‘“‘If the circumstances reasonably justify the trier of fact’s findings, [our] opinion [] that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’”’ [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 667-668.)
Aggravated sexual assault occurs when the defendant accomplishes sexual intercourse “against a person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury . . . .” (Pen. Code, §§ 269, subd. (a)(1), 261, subd. (a)(2).) The force requirement is satisfied if the defendant’s physical methods overcome the will of the victim to resist the attack. (People v. Griffin (2004) 33 Cal.4th 1015, 1027.) “[E]ven conduct which might normally attend sexual intercourse, when engaged in with force sufficient to overcome the victim’s will,” can satisfy the force element. (Ibid., citing People v. Tollack (1951) 105 Cal.App.2d 169, 171 [“‘“‘The kind of physical force is immaterial . . . it may consist in . . . laying hold of and kissing (the victim) against her will.’”’”].)
Here, the incident in question arose when Sabala called L. into the bathroom, a place where no one else could see them. He started touching and licking her breasts, and then he took off her clothes and had her get on top of him. When he first tried to penetrate her, she told him it hurt and asked him to stop. However, instead of relenting, Sabala grabbed her shoulder and hip and pushed her down onto him. Then he had her rock back and forth until he ejaculated. In so doing, Sabala clearly overcame L.’s resistance to his actions through physical means. The facts are thus sufficient to support the jury’s determination he accomplished sexual intercourse with L. through the use of force. (See People v. Pitmon (1985) 170 Cal.App.3d 38, 48 [defendant’s act of slightly pushing on the victim’s back during lewd act constituted sufficient use of force].)
There is also substantial evidence Sabala effectuated the attack by means of duress, i.e., psychological coercion. Duress is defined as “a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted.” (Pen. Code, § 261, subd. (b).) “Duress can arise from various circumstances, including the relationship between the defendant and the victim and their relative ages and sizes. [Citations.] ‘Where the defendant is a family member and the victim is young, . . . the position of dominance and authority of the defendant and his continuous exploitation of the victim’ is relevant to the existence of duress. [Citation.]” (People v. Senior (1992) 3 Cal.App.4th 765, 775.)
At the time of the alleged assault in the bathroom, L. was 12 years old. Sabala had been subjecting her to continuous sexual abuse for a number of years, and she believed he was her real father. She also knew from past experience that he often beat her when she tried to avoid his sexual advances. All of this indicates that Sabala held a position of dominance and authority over young L. and that he used his dominance to achieve sexual intercourse with her on the occasion in question. Therefore, irrespective of the force issue, the evidence is clearly sufficient to support his conviction for aggravated sexual assault on the theory he accomplished intercourse with L. by means of duress. There is no basis to disturb the conviction.
III
By the time Sabala was charged in this case, the statute of limitations had run on all of the crimes involving L., except for the aggravated sexual assault. Nonetheless, the jury found the time-barred crimes were properly prosecuted under Penal Code section 803. Sabala argues there is insufficient evidence to support this finding, but once again, we must disagree.
Under Penal Code section 803, the prosecution may commence prosecution for a time-barred sex crime if: 1) The victim was under the age of 18 when she reported the crime to the police; 2) she filed a complaint within a year of her police report; 3) the crime involved substantial sexual conduct; and 4) the allegations are independently corroborated by clear and convincing evidence. (Pen. Code, § 803, subd. (f).) Although Sabala concedes the first three requirements were met in this case, he contends L.’s allegations lacked sufficient corroboration.
The corroboration required under Penal Code section 803, subdivision (f) “does not have to be sufficient to support a conviction.” (People v. Ruiloba (2005) 131 Cal.App.4th 674, 683.) Evidence that the defendant acted in a sexually inappropriate manner to other victims may suffice to corroborate the complainant’s allegations. (Ibid.) Indeed, to the extent such evidence shows “a defendant’s propensity to commit sexual offenses against a child, it can corroborate all of the charged offenses even if [they do] not particularly corroborate any specific offense.” (Ibid.)
Here, there was evidence Sabala grabbed N.’s breasts and put his tongue in her mouth when she was under the age of 14. Based on this evidence, the jury could infer Sabala had a sexual attraction to young girls, which would be relevant in terms of corroborating L.’s allegations. In addition, both N. and J. testified they saw Sabala having intercourse with L. Corroborative evidence seldom comes much stronger than in the form of first-hand reports from percipient witnesses.
Then there is the police-assisted phone call, during which Sabala essentially admitted to having sex with L. Sabala notes that during the call, L. did not specifically reference how old she was at the time the alleged acts occurred. In Sabala’s view, this is problematical because in some of the counts, he was charged with molesting L. when she was under the age of 14. However, during the call, L. mentioned the time when she was “younger” and sexually inexperienced. Given this, the jury could reasonably deduce Sabala was acknowledging that he engaged in inappropriate conduct with L. when she was under the age of 14.
Even if we assume the phone call was too vague to establish the timing of Sabala’s sexual conduct with L., one thing is certain: The call did reinforce the notion that Sabala was a sexual predator. “Although [L. and Sabala] did not discuss particular acts or dates [during the call], the tenor is clear. The fact it corroborates any sexual acts corroborates all of [L.’s] allegations, because the call tended to prove his lewd disposition toward her in particular.” (People v. Ruiloba, supra, 131 Cal.App.4th at p. 688.)
In light of all the testimony that was presented, there was sufficient evidence to corroborate L.’s allegations for purposes of Penal Code section 803, subdivision (f). Therefore, we find the prosecution was timely commenced within the terms of that statute.
The judgment is affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.